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Supreme Court To Decide Whether Or Not You Own What You Own

Unknown Lamer posted about 2 years ago | from the industry-argues-"ownership"-hurts-revenues dept.

Books 543

Jafafa Hots writes "The Supreme Court is set to decide, in the case of Kirtsaeng v. John Wiley & Sons, whether or not First Sale Doctrine applies to products made with parts sourced from outside the United States. If the Supreme Court upholds an appellate ruling, it would mean that the IP holders of anything you own that has been made in China, Japan or Europe, for example, would have to give you permission to sell it. Your old used CDs, cell phone, books, or that Ford truck with foreign parts? It may not be yours to sell unless you get explicit permission and presumably pay royalties. 'It would be absurd to say anything manufactured abroad can't be bought or sold here,' said Marvin Ammori, a First Amendment lawyer and Schwartz Fellow at the New American Foundation who specializes in technology issues."

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Let them do it. (4, Funny)

Anonymous Coward | about 2 years ago | (#41594879)

It will provide a huge boost to US manufacturing jobs!

Re:Let them do it. (5, Insightful)

qbast (1265706) | about 2 years ago | (#41594919)

Actually no, it will be the opposite.

Re:Let them do it. (1)

Anonymous Coward | about 2 years ago | (#41594939)

Really? Do you know how much money US car makers "loose" to used car sales? Imagine now that you can't resell a car made in Mexico.

Worse (5, Interesting)

AliasMarlowe (1042386) | about 2 years ago | (#41595229)

Even worse, many items are made from petroleum. Just think of plastics and everything made from plastic or incorporating bits of plastic (I see some vinyl in that there car, sonny, and the tires are made of rubber). Now some of the petroleum used in making those plastics and related synthetics might have come from wells in the USA, but some might not and it tends to get blended during or after refining. The provenance of such intermediate materials is not tracked.

So we have another question: how much transformation of a foreign-sourced raw material or intermediate material derived therefrom would be needed to escape the consequences of this putative ruling? Would shaping foreign wood into furniture be sufficient? What about polymerizing a foreign-sourced material (making an intermediate of plastic or ceramic or rubber)? Even supposing a strict boundary could be defined for the amount of processing or transformation required, it would just lead to the creation and feeding of loophole-finding (or making) industries.

Re:Worse (2)

pepty (1976012) | about 2 years ago | (#41595353)

Wouldn't they just use the same standards that apply to the "made in the U.S.A." label? I.e., 75% of the manufacturing cost and a tranformative step (assembly, molding, etc) would have to be domestic.

Might be incentive to buy American? (3, Insightful)

gorfie (700458) | about 2 years ago | (#41594891)

That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad. People would be determined to buy domestic products (assuming they even exist these days). That said, it was clear that I could sell my car without permission when I bought it - changing the terms after the sale seems very wrong. If they implement this rule, they should specify that it applies to sales after a point in time in the future.

Re:Might be incentive to buy American? (5, Insightful)

Anonymous Coward | about 2 years ago | (#41594913)

That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad.

But it would incentivize companies to build stuff abroad. Once they've imported it they can voluntarily give purchasers control over it anyway if that helps build sales, but it's something they can turn on and off to their own benefit. If they build in the US then they don't have the option. So why build in the US?

Re:Might be incentive to buy American? (3, Insightful)

P-niiice (1703362) | about 2 years ago | (#41595019)

Exactly, and anything that benefits companies is good to go with this court. Thomas would snore in agreement.

Re:Might be incentive to buy American? (5, Interesting)

roccomaglio (520780) | about 2 years ago | (#41595355)

Justice Thomas has stated he does not feel that he is listening when he is thinking about what to say, so he does not ask questions. It is flame bait to claim that he is sleeping. The interesting thing is that some of the pro corporate stuff comes out the liberal side of the court. For instance Keho, this was where the supreme court decided that the government could seize property via eminate domain and give it to a corporation. The logic was that the government would receive more tax revenue from the new use. The conservative side produced citizen united which basically lets corporation give unlimited money to political speech.

Re:Might be incentive to buy American? (4, Insightful)

pesho (843750) | about 2 years ago | (#41594923)

That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad.

Name one such product.

Here's list of unknown accuracy (3, Informative)

Anonymous Coward | about 2 years ago | (#41594979)

Here is a website that tracks what products are still made in the US of A [stillmadeinusa.com]

They seem to be pretty good about differentiating between actually made and assembled. Now as far as raw materials are concerned or sub-assemblies, I don't know.

Re:Here's list of unknown accuracy (4, Insightful)

pesho (843750) | about 2 years ago | (#41595039)

Do any of these products contain plastic, fibers, pigments, metal, rubber or electronic components? if so more likely than not they contain parts not made in the US.

Re:Here's list of unknown accuracy (1)

arth1 (260657) | about 2 years ago | (#41595109)

They seem to be pretty good about differentiating between actually made and assembled.

Not so good as far as I can tell. I looked at http://www.stillmadeinusa.com/music.html#Audio [stillmadeinusa.com] and can tell you that several of the companies there sell items assembled from Far East components, and some even sell products manufactured completely in China.

These days, it's exceedingly hard to avoid foreign products. Even if you make children, I'm not convinced they won't come out with parts Made in China.

Re:Here's list of unknown accuracy (2)

Talderas (1212466) | about 2 years ago | (#41595343)

I believe there is one product that is no longer made in the USA at all.

Resistance wire. You know, the wire that is made specifically for is resistance values? We used to have 1 manufacturer in the US (I think) but it closed in the 90s. Now I think most of it is manufactured in Sweden and Germany.

The generalize what that means... anything that has a heating element was constructed from parts made outside the US.

Re:Here's list of unknown accuracy (1)

gl4ss (559668) | about 2 years ago | (#41595125)

all you need is a foreign manufactured microchip and it would fall under this nonsense.

Re:Might be incentive to buy American? (1)

WillAdams (45638) | about 2 years ago | (#41595067)

Bear Archery still makes bows in the U.S. Tour of the factory here:

http://forum.gon.com/showthread.php?t=428012 [gon.com]

Re:Might be incentive to buy American? (5, Funny)

EasyTarget (43516) | about 2 years ago | (#41595161)

So the the best example of something wholly made 'made in America' is a weapon.
Well done.

Re:Might be incentive to buy American? (1)

Anonymous Coward | about 2 years ago | (#41595425)

Don't forget Henry Arms

Re:Might be incentive to buy American? (0)

Anonymous Coward | about 2 years ago | (#41595195)

The device you used to post this answer.

Re:Might be incentive to buy American? (2)

jimbolauski (882977) | about 2 years ago | (#41594965)

Did the contract you signed to purchase the car explicitly say you have the right to resell the car and all of its components? I have not read purchase agreement in a long time but if that statement is not in there, then you were not granted the right to resell without permission if the appellate court's ruling is upheld. Unless your car is 50 years old I doubt that 100% of the parts are made in the US and you would fall into the you are boned category.

Re:Might be incentive to buy American? (5, Insightful)

gstoddart (321705) | about 2 years ago | (#41595187)

Did the contract you signed to purchase the car explicitly say you have the right to resell the car and all of its components?

But since we already have right of first sale, the presumption has always been that it is our property, and that we are free to sell it.

This would literally change it so that everything is essentially licensed, and you don't own it.

And, I'm sorry, but given what people pay for their cars, the idea that we would need permission to sell it (or almost anything else) is kind of scary.

This kind of thing is truly getting ridiculous, and IP law will have fully jumped the shark.

Re:Might be incentive to buy American? (4, Insightful)

Anonymous Coward | about 2 years ago | (#41595369)

It would also mean that most garage sales would have to get raided in case there was a stereo or DVD player on sale and many donations to organizations such as Good Will or Salvation Army would not be allowed. Hurray! We can still put that stuff in the landfill though. I remember that appellate court ruling when it was mentioned here or on Arstechnica. At the time I wondered just how they could come to such a ludicrous decision.

Re:Might be incentive to buy American? (1)

firex726 (1188453) | about 2 years ago | (#41595027)

Ya know most things that are listed as "Made in America" are only partly made here, maybe assembled from parts manufactured abroad.

You'd have to in effect recreate the entire manufacturing and mining industries from scratch.

Re:Might be incentive to buy American? (0)

Anonymous Coward | about 2 years ago | (#41595179)

I look at it this way... if you can't honestly call a Harley Davidson "Made in the USA", and much of their merch (read as: profit) is made in china or pakistan anyway, then almost nothing is.

Re:Might be incentive to buy American? (0)

Anonymous Coward | about 2 years ago | (#41595089)

I think most people would be happy to buy American if products were reasonably priced, and of better quality. Unfortunately, Americans are more concerned with joining unions, demanding a presidential sized paycheck, and making up for coming in late by leaving early.

As for the article, I'm a bit sick of the government telling me what to do. As it is I can't sell something that I bought, and paid for with money that was taxed when I earned it, and taxed at the point of sale without the new buyer paying tax again (use tax - it's BS). If they keep it up they're going to fix the economy good, because all of us "baggers" who feel that we are definately indeed taxed enough already are going to just quit buying anything but the bare essentials. We might not even stay in the US to do it.

Re:Might be incentive to buy American? (0)

Anonymous Coward | about 2 years ago | (#41595155)

Doubleplusgood duckspeak.

Re:Might be incentive to buy American? (0)

Anonymous Coward | about 2 years ago | (#41595159)

Such things don't exist. Dream on, mate.

Might be incentive to buy Black Market (3, Informative)

jellomizer (103300) | about 2 years ago | (#41595203)

This is messing with the capitalistic economic model people will still want those goods, and people will be willing to sell them, but they will do it over the black market. Because the legit way is too costly.

The black market isn't always for shady product, but products that you cannot obtain legally.
For example in New York the biggest Black Market Activity is in unpasteurized milk. Why because there is a good number of "organic" lovers who would rather have their milk unprocessed and they say it tastes better, and is better for you, and by New York Law milk can only be sold pasteurized. Hence black market activity.
So saying you cannot resell a product and people wants it. It will be done under the table.

Now the problem with black market is the buyer and seller loose legal protection. So the seller can rip you off and you have no legal recourse. Or the buyer can do something else to you and in order to get the guy in trouble you will need to admit to breaking the law. This is a problem with prostitution because it is illegal if the women are mistreated they do not have many options for them.

Re:Might be incentive to buy Black Market (2)

h4rr4r (612664) | about 2 years ago | (#41595251)

Please list some citations.
I am unwilling to believe that unpasteurized milk is a bigger black market activity than illegal drug sales without some evidence.

Re:Might be incentive to buy American? (1)

Jawnn (445279) | about 2 years ago | (#41595247)

That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad. People would be determined to buy domestic products (assuming they even exist these days). That said, it was clear that I could sell my car without permission when I bought it - changing the terms after the sale seems very wrong. If they implement this rule, they should specify that it applies to sales after a point in time in the future.

You'd have to change a lot more than the automotive industry. Otherwise, you would not be able to afford that "all American made" vehicle. That's right. The simple fact is that it costs more to build a car in the U.S. than it does to build, and deliver, a car made in Japan or Korea. But damage to the economy, done by off-shoring huge chunks of our jobs, is so widespread that only a fortunate few now have the income to be such "patriotic" consumers. This is by design. Yes, it is, and TFA is nothing if not yet another indication of that design. Look of the word "serfdom". You are on the path to it.

That is virtually every electronic device. (5, Insightful)

AlabamaCajun (2710177) | about 2 years ago | (#41594895)

Almost any electronic device and all autos made after the 50s or 60s that has an imported part of some sort. Do we take it to the next level with minerals and metals imported too? I think this has about as much chance of standing as a two legged stool.

Who's Soveriegn Law Applies? (0)

Anonymous Coward | about 2 years ago | (#41594961)

An important part of the question is if the contract between the seller and buyer can be broken by moving the object to another country. Though that issue is not, per se, presented to the court, part of the question is if the (one-sided, shrink-wrapped license agreement) that the buyer agreed to in a different country can be enforced in the U.S.

If I sell you something with the agreement that you will not export it, and then you export it, does that license still hold?

Re:That is virtually every electronic device. (4, Informative)

Sique (173459) | about 2 years ago | (#41594995)

Please remember, if the ruling is uphold, it works only for the imaginary parts of the product (e.g. trademarks, copyrights, patents) and not the physical ones. As long as you don't have patented screws or copyrighted sheet metal in the object you sell, the sale might be ok.

Re:That is virtually every electronic device. (0)

Anonymous Coward | about 2 years ago | (#41595031)

might be ok.

Oh boy I can't wait

Re:That is virtually every electronic device. (1)

guruevi (827432) | about 2 years ago | (#41595123)

Have you looked recently at any component. I have here an electronic prototype box (plastic and PCB) that has 9 patent numbers printed on it. My car has a laundry list of them, computers and software have a bunch of them attached to them.

Almost everything you buy (including certain screws - see Torx) have patents attached to them.

Re:That is virtually every electronic device. (1)

Targon (17348) | about 2 years ago | (#41595137)

The problem is that pretty much every product these days uses computer chips or various sorts, which WILL have all sorts of copyrights, patents, and such. Since many chips are made outside the USA, that DOES mean that just about everything has at least one element that comes from a foreign country.

Re:That is virtually every electronic device. (1)

The Rizz (1319) | about 2 years ago | (#41595141)

if the ruling is uphold, it works only for the imaginary parts of the product (e.g. trademarks, copyrights, patents) and not the physical ones. As long as you don't have patented screws or copyrighted sheet metal in the object you sell, the sale might be ok.

...or a trademarked logo anywhere on it, or any type of computer chip (the code is copyrighted), or they don't stamp a copyrighted patten into the plastic/metal/whatever... so, in other words, it only holds to non-raw materials (i.e., pretty much everything a consumer will ever actually purchase).

Re:That is virtually every electronic device. (0)

Anonymous Coward | about 2 years ago | (#41595299)

Not like today's consumer products outside of cars are designed to last enough to have any resold values. Add to that with the disposable mentality and anything that's not "shiny" is "shit" attitude, would resale even be a consideration for them "hipsters"?

That's crazy talk. (5, Insightful)

Anonymous Coward | about 2 years ago | (#41594905)

When something is sold, it is no longer the sellers, it's the buyers.
This rediculous IP notion has gotten out of hand.

Re:That's crazy talk. (1)

Zimluura (2543412) | about 2 years ago | (#41594931)

i wish i could mod this post "+1 obvious but necessary"

Re:That's crazy talk. (2)

Hanzie (16075) | about 2 years ago | (#41594981)

+1 obvious, but has to be screamed in the face of idiots.

Re:That's crazy talk. (1)

Anonymous Coward | about 2 years ago | (#41595235)

Intellectual property rights are fundamentally incompatible with tangible property rights. You can have one, but not the other. We're careening backward toward the age of guilds and fiefdoms at breakneck speed, and if the court upholds this decision we should interpret it as nothing short of a full broadside attack on property rights, and respond appropriately.

Re:That's crazy talk. (5, Insightful)

squiggleslash (241428) | about 2 years ago | (#41595345)

...and yet a lot of people, on Slashdot, don't agree with you.

I remember when Real Networks reverse engineered the iPod's DRM and shipped a program that copied Rhapsody (then owned by Real) music to the iPod. How people howled.

Some, rightly, complained that Real's actions were simply propping up DRM and DRM is wrong (although Rhapsody is a fairly good example of a "good" use of DRM if DRM is going to exist anyway, but that's another issue...) But a lot of people were furious that Real had hacked "Apple's" iPod and that Real was being unethical for copying music to "Apple's" devices and it was quite right that Real would need permission from Apple to do that.

The notion that, actually, an iPod belonged to the buyer, not Apple, and that it was the buyer's decision what to do with it was generally considered flamebait...

The world is complex. Technology is complicated. I shouldn't have to bring my lawyer into Best Buy with me when I buy a fucking MP3 player. If I buy one, it should be mine, end of story, and I should be able to do whatever I want with it as long as I don't break the law doing so. You want me not to copy the firmware? That's fine, because I can't legally copy it anyway. You want me to not install my own firmware, or reverse engineer what's on it, or sell content I've recorded on the device using the audio recording feature (contianing no third party content), or paint it blue? F you, that's not your decision.

John Wiley & Sons should be the ones getting s (5, Insightful)

usuallylost (2468686) | about 2 years ago | (#41594945)

It sounds like they are gouging the hell out of their US customers if this guy can buy the same book abroad, pay international shipping on it, probably import duties etc. and still make $1.2 million dollars. Instead we have another case where a "rights holder" is trying to assert insane terms on the rest of country to preserve their business model. Let us hope that the Supreme Court hears this on one of its "non-crazy" days.

Re:John Wiley & Sons should be the ones gettin (0)

Anonymous Coward | about 2 years ago | (#41595287)

Just google for USB HD Scanner. Camera to OCR'ed text very quickly. Some have 2 5MP camera's and logic to digitize books in short order.
One second per page. I can see this is way better than a clapped out photocopier from an auction. In my days the photocopier in the short loan section of the Library took a beating, until someone rented a house opposite with a book photocopier service.
So e-books may be a temporary thing, when camera-scanners become universal.

Now regarding more expensive books/ software. That would give students in China/India an advantage that will grow and grow, and a lower cost base. That sucking noise is jobs and money being hoovered offshore back to China. Are we going to arrest a foreign student clutching a overseas only edition textbook? Even though I can have a whole bible on a USB stick, there is still a good trade in printed bibles.

This is a rearguard action to protect fat profits, which is going to loose to technology. I think the 'Greys Anatomy' book in medical degrees had this problem before. The right action is to grin and bear it.

What about my house? (5, Insightful)

cvtan (752695) | about 2 years ago | (#41594951)

It's not just a problem with electronics. I might have Chinese light fixtures, or Mexican light switches, plumbing etc. in my home. Will I have to get permission from 50 different companies before I can sell it?

Re:What about my house? (1)

firex726 (1188453) | about 2 years ago | (#41595041)

Well a lot of lumber and steel is brought over the border.

The Top Court's reaction should be priceless. (5, Insightful)

109 97 116 116 (191581) | about 2 years ago | (#41594963)

I predict an obvious but subtle castigation of lower courts for it getting there at all.

But when did we lose common sense? Can't a corporation think it's way out of a wet paper sack?
Clearly the solution for them would be to raise prices abroad.

This parallels drug importing I suppose as well. Same solution imho.

Oh wait...nobody abroad would pay that much for a book? Then maybe you're gouging the US market and as a judge I'd say you've made your profit here via gouging and abroad by what you were willing to sell for under no choice but your own and what the market will bear.

Tough Shiite.

Hmm, up for a corporate exploit (5, Insightful)

Coisiche (2000870) | about 2 years ago | (#41594975)

So if upheld then Apple (or indeed any American corporation that utilizes offshore manufacture of products of their own design) could forbid resale of their products so that you could only ever buy new from them.

Seems like a win for them.

So Far, Supreme Court Unanimous (4, Insightful)

retroworks (652802) | about 2 years ago | (#41594989)

The Fuji vs. Jazz Camera, Lexmark vs. Arizona Cartridge Remanufacturers, and other cases have been rare examples of unanimous rulings by the Supreme Court vs. similar appellate court rulings on patent extension. I work in the re-manufacturing industry and am not too worried about the USA courts (though the Terminator-like persistence of foreign companies bringing the case that resale = patent or trademark infringement is frightening, and the Mickey Mouse rulings on Trademark are depressing). What's more troubling is the direction ownership law goes when the USA Supreme Court and European Courts no longer oversee 80% of all product sales. Chinese consumers purchase more computer products than the USA today, and if they take a Japanese turn in their court rulings, these corporations may become godlike, and the USA may be tempted to try to give our own companies (like Apple) similar power. See links to the cases above at http://retroworks.blogspot.com/2012/03/usas-finest-supreme-court-ruling-for.html [blogspot.com]

This will come down to commerce (0)

Anonymous Coward | about 2 years ago | (#41594991)

The ruling will be simple.

It will state that the Doctrine of First Sale applies to anything purchased purely for personal, non-commercial use, but not to anything purchased with a profit motive.

This is the only way the SCOTUS will be able to, with a straight face, hand over more rights to copyright holders and IP trolls.

The 99% will not care, because they'll be too busy saying "well it doesn't hurt me directly, and therefore I don't care" to give two shits about what's important.

Re:This will come down to commerce (4, Insightful)

The Rizz (1319) | about 2 years ago | (#41595199)

The 99% will not care, because they'll be too busy saying "well it doesn't hurt me directly, and therefore I don't care"

Actually, since it kills every thrift store, second-hand shop, pawn shop, etc. I'm pretty sure "the 99%" are going to notice the problem pretty damn quick.

Before yesterday .. (4, Insightful)

OzPeter (195038) | about 2 years ago | (#41594997)

Before yesterday I would have nominated "PETA Condemns Pokemon For Promoting Animal Abuse" as the batshit crazy story of the year. Now I think it has competition.

Another example (0)

Anonymous Coward | about 2 years ago | (#41595001)

Stuff like this is the easy way of becoming the worlds laughingstock.

The case is being misrepresented here.... (5, Informative)

Anonymous Coward | about 2 years ago | (#41595007)

The case is regarding items manufacturered in foreign countries and intended for sale in those countries. NOT items manufactured in foreign countries intended for sale in the United States. At issue is having someone buy things cheaper overseas and resell them cheaper here in the US than the manufacturers intended US price.

That's still horrible - but not nearly as bad as the article summary would have you believe.

Re:The case is being misrepresented here.... (1)

alphax45 (675119) | about 2 years ago | (#41595093)

If your right (and I think you are) that makes a lot more sense.

Re:The case is being misrepresented here.... (0)

JimCanuck (2474366) | about 2 years ago | (#41595143)

Pretty much but Slashdot sensationalism always wins out when writing summaries.

Re:The case is being misrepresented here.... (1)

guruevi (827432) | about 2 years ago | (#41595145)

Aren't all items eventually intended to be sold in those countries as well as the US.

I can see major legal loopholes in your argument if they would allow it. Simply import everything that is 'intended' for another market and you won't have the right to resell it anymore?

Re:The case is being misrepresented here.... (3, Insightful)

cpt kangarooski (3773) | about 2 years ago | (#41595211)

The lower court directly addressed that question and said that authorized importation of a work manufactured abroad would not be sufficient for the first sale statute to apply. Perhaps they went further than they needed to to decide the case that was before them, but the case is not really being misrepresented.

While the Ninth Circuit in Omega held that 109(a) also applies to foreign-produced copies of works sold in the United States with the permission of the copyright holder, that holding relied on Ninth Circuit precedents not adopted by other courts of appeals. Accordingly, while perhaps a close call, we think that, in light of its necessary interplay with 602(a)(1), 109(a) is best interpreted as applying only to copies manufactured domestically.

Re:The case is being misrepresented here.... (3, Insightful)

The Rizz (1319) | about 2 years ago | (#41595219)

... you honestly think corporations would limit themselves to that interpretation?

Re:The case is being misrepresented here.... (5, Interesting)

JaredOfEuropa (526365) | about 2 years ago | (#41595415)

The real question is how the ruling, if upheld, would affect subsequent cases. At a glance there's still a lot of reasons to be afraid, very afraid.

Some time ago in NL we had laws against "parallel imports" that specifically targeted this practice (they probably have been superseded by Euro laws since). If I remember correctly, this law granted the manufacturer or their designated representatives the right of first sale (and first sale only) in our country, which was achieved by forbidding anyone else to import their stuff in bulk. Kirtsaeng wouldn't have been able to import the books under this law, but there would have been absolutely no question about the legality of second hand sales in general.

Another thing that I wouldn't mind to be set firmly into law. If you buy a physical product, it should come with a perpetual license for all associated IP: patents, trademarks and copyrights. That license is an inseparable part of the product. The idea that the license remains with the first buyer and is non-transferrable is ludicrous, yet that is exactly what IP holders would love. Creators of intangible products like computer games and e-books have already gotten in on this action, and made transferring access certificates or keys to create game accounts more or less impossible. I do understand the difficulties there, but I'd me much more inclined to firmly anchor the first sale doctrine into explicit law and extend it to non-tangible products, than I'd be to extend the notion of personal licenses to physical products, as is seemingly on the table in this case.

Looks like an end-run around illegal importing (5, Informative)

concealment (2447304) | about 2 years ago | (#41595017)

The guy who's being brought to trial seems to have imported enough textbooks to earn $1.2 million. That means this isn't really a case about reselling your car, but about whether private citizens can buy a bunch of stuff abroad and re-sell it here for profit because it's cheaper abroad.

You can track the legislation here:

Re:Looks like an end-run around illegal importing (4, Insightful)

fuzzyfuzzyfungus (1223518) | about 2 years ago | (#41595035)

It will, unless very cautiously written, soon enough be supplying precedent for shutdowns on individual ebayers and whatnot.

Also, isn't 'illegal importing' more usually what we call "Arbitrage" or "Trade", unless the goods imported are themselves illegal or relevant laws concerning customs duties and declarations were not adhered to?

Re:Looks like an end-run around illegal importing (4, Insightful)

gl4ss (559668) | about 2 years ago | (#41595133)

the books are legal.

it's reselling them that you need permission for, hence the stupidity of this case.

I repeat, the books weren't unauthorized pirate copies...

Re:Looks like an end-run around illegal importing (5, Funny)

SvetBeard (922070) | about 2 years ago | (#41595389)

Have you priced textbooks lately? $1.2 million is only 5 or 6 books.

America..... the land of the free (0)

Anonymous Coward | about 2 years ago | (#41595023)

America is turning in to the USSA very quickly.
America will be the next Rome.

The article says something different (5, Informative)

Albanach (527650) | about 2 years ago | (#41595025)

So having read the article, it doesn't say the same thing as the summary. To be fair, I haven't read any of the court paperwork, so the publisher could indeed be claiming that you cannot sell something with foreign parts.

This case, however, stems from a student buying textbooks at lower cost overseas and then selling them in the US on eBay.

I'm not saying it's good, right or proper that the publisher wishes to restrict these sales. I simply want to highlight that it's a very different proposition saying you cannot resell in the US a complete product purchased in a developing market where the manufacturer sells at a lower cost as opposed to being unable to sell anything that contains a foreign part.

I believe the situation the publisher supports is already the case in Europe, where Levi Strauss won a battle against supermarkets who were importing grey market denims and selling them at a lower cost than licensed distributors could buy the jeans in the UK.

Re:The article says something different (4, Insightful)

gl4ss (559668) | about 2 years ago | (#41595171)

which is equally silly. essentially I shouldn't be able to take my jeans to a flea market because I bought them during a trip to USA? (levi's can be had ~33% of the price there vs. here locally, not kidding).

legally the case is is sadly about who has the right for resale. global markets and all, consumers should benefit from it. if we can find a cheaper way to ship the products into our hands in whatever country we are in, then we should be allowed to do so.

Re:The article says something different (2)

Albanach (527650) | about 2 years ago | (#41595279)

legally the case is is sadly about who has the right for resale. global markets and all, consumers should benefit from it. if we can find a cheaper way to ship the products into our hands in whatever country we are in, then we should be allowed to do so.

It might not be as black and white as you make out.

Take for example antiretroviral drugs used for treating HIV infections. As they often say, each tablet costs about 20 cents, after the first tablet which cost $2 billion.

The drug firm needs to recoup its development costs before its patent expires. So it might calculate it can do so by selling to customers in the West at $1,000 per patient per year.

But there are people dying in the developing world who could also benefit. The drug firm could see the drug their profitably (if we only consider manufacturing) at $50 per patient per year. That increases their overall revenue and lets them spend more money developing more drugs.

But if those $50/year drugs were to make their way back into the Western markets, the drug company would now be losing money.

So, should they not sell the lower cost drugs and leave the developing world to fend for themselves, or should they be able to sell at different prices in different markets?

Of course the argument is very different for denims, where there's not huge development costs to recoup. But it might be similar with textbooks which had large upfront fees paying the authors and doing the editing and layout. Similarly it might be the same with electronics that have huge development costs.

Re:The article says something different (4, Insightful)

h4rr4r (612664) | about 2 years ago | (#41595357)

They can sell at different prices and deal with importation or they can somehow add some value to the more expensive sales. Maybe delivering them for free and on time, or adding in some service.

What they should not be able to do is demand that my tax dollars make them wealthy.

They have no right to make a profit, only a right to try to.

Re:The article says something different (0)

Anonymous Coward | about 2 years ago | (#41595173)

Fuck them all, the corporations wanted global free trade. They wanted to be able to screw people over to the maximum profit regardless of where they were, it is only right that they get screwed in return.

End of amazon/ebay? (2)

marcushnk (90744) | about 2 years ago | (#41595047)

Wouldn't this destroy Amazon and Ebay?
they sell an awful lot of second hand kit...

Re:End of amazon/ebay? (1)

guruevi (827432) | about 2 years ago | (#41595151)

Yes, but at least then nobody will be skirting any sales taxes anymore. win-win for the politicians.

Re:End of amazon/ebay? (1)

Somebody Is Using My (985418) | about 2 years ago | (#41595297)

It's a win for big corporations too.

After all, you shouldn't be buying somebody's USED goods. How does that help the poor corporations? They don't see dime one from that transaction. No, you need to buy a NEW widget instead. That way the corporations get some of their hard-earned investment back. What's good for corporations is good for the country. The old device needs to be tossed away into some hole in the ground.

That's the American Way. Why do all those Ebayers and flea-marketers hate America, that's the real question!

Hope we have a proper treaty with the Goblins. (4, Insightful)

140Mandak262Jamuna (970587) | about 2 years ago | (#41595051)

If we don't have an explicit treaty with the Goblins, everything made by Goblins would be exempted from the First Sale doctrine. Citation provided:

From The Deathly Hallows by JKRowling:

"You don't understand, Harry, nobody could understand unless they have lived with the goblins. To a goblin, the rightful and true master of any object is its maker, not the purchaser. All goblin-made objects are, in goblin eyes, rightfully theirs."

"But if it was bought — "

" — then they would consider it rented by one who had paid the money. They have, however, great difficulty with the idea of goblin-made objects passing from wizard to wizard. [snip] I believe he thinks, as do the fiercest of his kind, that it ought to have been returned to the goblins once the original purchaser died. They consider our habit of keeping goblin-made objects, passing them from wizard to wizard without further payment, little more than theft."

This would destroy jobs (0)

Anonymous Coward | about 2 years ago | (#41595057)

As the article mentions, upholding the "first sale doctrine doesn't apply to foreign-made goods" decision will simply give domestic businesses in the US even more incentive to outsource all of their manufacturing globally, essentially side-stepping the first sale doctrine completely while further destroying the jobs market. Whatever incentives we offer to keep them domestic probably pale in comparison to the ability to stake a claim on all future sales, even if it would be practically difficult to implement any kind of enforcement and tracking system. Consumers would be driven toward grey market solutions for trading their foreign-made goods, but eBay and Craigslist likely wouldn't last very long under the added weight of infringement claims.

Article is misleading (4, Informative)

rollingcalf (605357) | about 2 years ago | (#41595071)

What matters is where the authorized "first sale" occurred, not where it was manufactured.

So if a book publisher has books printed outside the US, then imports them and sells them retail for the first time in the US, you can freely resell it because the first sale occurred within the US.

What is being disputed in this court case is whether you can resell a copyrighted item in the US if the first sale occurred outside the US.

Re:Article is misleading (2)

cpt kangarooski (3773) | about 2 years ago | (#41595169)

Not quite. Different appellate courts appear to be of different minds about whether 17 USC 109 (permitting unauthorized resale, etc. after the first sale under the auspices of the copyright holder) applies to works manufactured abroad but imported by or under the authorization of the US copyright holder.

Here is the language from the appellate decision in this case, which is what is being appealed:

While the Ninth Circuit in Omega held that  109(a) also applies to foreign-produced copies of works sold in the United States with the permission of the copyright holder, that holding relied on Ninth Circuit precedents not adopted by other courts of appeals. Accordingly, while perhaps a close call, we think that, in light of its necessary interplay with  602(a)(1),  109(a) is best interpreted as applying only to copies manufactured domestically.

Re:Article is misleading (2)

Targon (17348) | about 2 years ago | (#41595257)

This also brings into question the idea of special pricing based on market being what is at fault. Why should the exact same product that is being sold for a low price in China sell for more in the USA, except for the cost of shipping, import tariffs, and taxes? From that point of view then, if you buy a product outside of the USA and then sell it here, the seller should be expected to pay all of the associated fees, and that would generally eliminate any benefit for selling the product cheap(because you give up your profits and then some).

Re:Article is misleading (0)

Anonymous Coward | about 2 years ago | (#41595375)

Most of these books in question don't really have the same quality as their American counterparts. Black and White illustrations instead of color, thinner paper, poorer quality of the binding. The actual textual content is the same though.

Re:Article is misleading (0)

Anonymous Coward | about 2 years ago | (#41595315)

Author doesn't know what she is writing about ...

She writes "Apple Inc. has the copyright on the iPhone." Obviously, she doesn't know the difference between copyright, trademarks, and patents.

Schrödinger's Cadillac (0)

Anonymous Coward | about 2 years ago | (#41595101)

... might be owned or unowned, but is still owned if meanwhile no appeal is upheld.

Re:Schrödinger's Cadillac (1)

Simon Brooke (45012) | about 2 years ago | (#41595429)

... might be owned or unowned, but is still owned if meanwhile no appeal is upheld.

Nah. It's been r possessed.

An important election. (1)

SternisheFan (2529412) | about 2 years ago | (#41595105)

This is one reason why this year's U.S. Pesidential election is so important. At least one Supreme Court judge will retire due to advanced age, both Republicans and Democrats are very aware of this

As usual... (0)

Anonymous Coward | about 2 years ago | (#41595111)

The world couldn't care less for the retarded 'merica legal crap...

Levis case in the UK? (1)

tubs (143128) | about 2 years ago | (#41595131)

This sounds very similar to the Trade Mark laws no in effect in Europe. It basically boils down to, you cannot import for resale anything that is trademarked, as the trademark owner has exclusive import rights.

This was originally because of a French company exporting it's product made in France to outside of the EU. The French companies product was then imported into France, and sold at a discount.

There was a major court case between Tesco and Levis about this, which had the Tesco representitive show tow paisr of Levis, both made in Turkey. One had been imported to the UK by Levis, and the other by Tesco from Turkey. The ones that were imported by Tesco are now illegal to sell in the UK.

It only includes items bough from outside the EU, not between EU countries (so say Germany to UK = fine, USA to UK = Not okay, unless the trademark owner has ok'd it). It's worked in the EU, so I expect this will mean it will work in the US too, as we all generally follow the same IP laws.

It's a little more complicated than that (3, Informative)

91degrees (207121) | about 2 years ago | (#41595147)

Copyright law recognises that publishers may well want to publish the same item at a different price in another country. A textbook in the US or Europe can be sold at quite a high price. In poorer countries, there's no way they can sell for these markups, so they're a lot cheaper.

The law allows the copyright holder to licence distribution to another party for distribution in another territory. To prevent a companies own products from competing with their domestic sales, the law makes it an infringement of copyright to sell a copy licensed for sale in another country. Whether you think this is right or not, this is what the law recognises, and what the Supreme court will be basing its decision on.

Of course, the lawmakers don't want to prevent you from taking a book with you when you're travelling, nor do they think that you should buy an entire new library if you move to another country. So you're allowed to bring the foreign copy to your country if you have no intention of selling it.

So what happens if you change your mind? Do you have the right to sell something that you legally brought into the country? Is the "first sale" the first time the item was sold, or is it the first time the item is sold in the US?

The article is highly misleading. This has no effect on something that just happens to have been made in another country, as long as it was originally sold by the copyright holder. Only items where the item has not yet been sold in the US.

Re:It's a little more complicated than that (1)

h4rr4r (612664) | about 2 years ago | (#41595337)

More reason to abolish or at least severely restrict copyright. If you want to sell a text book cheaper in a poorer country change the chapters around, change the example problems at least do some work to make it unsuitable for other markets, rather than demanding society pay to keep making you wealthy.

The only thing this proves... (1)

JustNiz (692889) | about 2 years ago | (#41595185)

The only thing this proves is how ridiculous and out of touch with reality that the law is.

Even if such a law was enforceable, no-one (even the manufacturers) would want to, as the moment they did, no-one would buy their stuff.

Re:The only thing this proves... (1)

erroneus (253617) | about 2 years ago | (#41595427)

Game companies want Gamestop out of the used game business. The RIAA wants an end to used music. The MPAA wants an end to used movies. And every thing maker will want to get in on this as well. Every sale of used-thing is believed to be a lost sale of new-thing.

Africa! (1)

mwvdlee (775178) | about 2 years ago | (#41595201)

All humanity stems from Africa.
All products include some amount of human labor.
Therefore all products include something from Africa and First Sale doctrine no longer applies.

Ofcourse you could apply it to materials only, in which case pretty much every product includes parts made from materials not naturally formed on earth.

A reason to outsource non-copyright businesses too (0)

Anonymous Coward | about 2 years ago | (#41595213)

Wiley's position would allow producers of all sorts of copyright-tainted critical business inputs, such as computerized machines, and all sorts of copyright-tainted items the workers may want to buy, to extract much of the higher productivity generated by a successful business operated in the US.

It would be better to produce movies, widgets, or whatever else abroad, with prices of the copyrighted movie-rendering facilities, production equipment, other inputs (not themselves incorporated in the product and subject to US price inflation) moderated by worldwide market demand. Have workers able to buy the same items, including, relatedly, drugs with less salary. And, on top of this, charge US customers more as others have discussed.

(Better yet to reject copyright-tainted inputs in favor of Free ones and not be held hostage by extortionate "remedies" of arbitrary millions of dollars or injunctions against overall businesses, nor contribute to the copyright industries' endless schemes.)

Globalism at work (2, Interesting)

Anonymous Coward | about 2 years ago | (#41595241)

Since time before time every merchant has known the following motto: Buy low. Sell high. Now with globalism we can buy labor and materials cheaply from the ends of the world and sell high in our own home market where half the populations lost their jobs to outsourcing. Isn't double dipping a great thing?

Wait, a private citizen like you wants to use the same strategy?! How dare you even think of this unpatriotic act circumventing the core values of capitalism? Preposterous! Only governments and large corporations are allowed to do that. You just take what you are offered at our fair and reasonable prices or we'll see you in court. Now go back to your television and be a model consumer.

Meanwhile in some research lab...

Hey guys, looky here! I have just found a new source of energy! We might be able to power our rockets and indeed our whole civilization with it! I call it hypocrisy and the best part is it seems to be an abundant and renewable resource in our civilization!

POLITICIANS BOUGHT AND SOLD I CAN SEE !! (0)

Anonymous Coward | about 2 years ago | (#41595261)

But judges bought and sold ?? Hello, ARMAGGEDON !! It is YOUR fault, you stupid-ass voter !!

The Supreme Court of the Republican Party (0, Troll)

Required Snark (1702878) | about 2 years ago | (#41595265)

It's not the Supreme Court of the United States, it's the Supreme Court of the Republican Party. Specifically the far right Republicans. If you have any doubts, just remember how Bush was appointed President in his first term.

None of this is off the record. It's all been reported. The news media has a combination of self censorship and ignoring the "boring" stuff. This is why it's never reported, and why this is a big surprise on Slashdot.

Here is what Scalia just said to the American Enterprise Institute on Oct. 5th, just last week. http://www.businessinsider.com/scalia-says-homosexual-sodomy-was-criminal-2012-10 [businessinsider.com] Oct 5, 2012

Justice Antonin Scalia has already called questions about the death penalty "laughable," saying if it was a law when the country was founded, then it's a law now.

And now the "originalist" is attacking homosexual behavior in the same breath as abortion and opposition to the death penalty.

During a speech at the American Enterprise Institute, Scalia said he disagrees with colleagues who now believe the death penalty is unconstitutional, the AP reported.

He then seemed to suggest that he didn't think homosexual activity was protected by the Constitution, either.

"The death penalty? Give me a break. It's easy ... Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said.

To quote the friend who sent this to me:

When the country was founded slavery was legal, adult women were legally and socially considered minors and one step above chattel, child labor was legal, "buggery" was punished by death, indentured servitude was legal, conscription into the armed forces was legal, genocide against Native Americans was legal (and enthusiastically pursued), and I could go on and on.

So how do you think Scalia will vote? The accepted current rights of the consumer, or some radical approach that will put more money and power in the hands of corrupt business interests? If you take him at his word, he would be happy to re-instate indentured servitude. What were the state of consumer rights 200 years ago? Still want to make a bet?

He claims to be an "originalist", but in fact his is a extreme radical. He's proud of this position, and makes speeches link this all the time. And it rarely makes the main stream headlines.

I expect that all the righty trolls will be making excuses for Scalia and the American Enterprise Institute. His idea of freedom, and the AEI idea of freedom, is that you STFU and do what your masters tell to to do. How bad does it have to get so that even the Slashdot nerds wake up and realize that the right wing want to turn them into peasants?

The case (4, Informative)

140Mandak262Jamuna (970587) | about 2 years ago | (#41595273)

Many book publishers license their books to be published in India, Thailand etc cheaply. I have bought many "Eastern Economy Edition" (EEE) in IISc Bangalore and IIT Madras when I was a student there. Though the price is very cheap compared to the dollar prices, it is still comparable on purchasing power parity exchange rate. For example the the book Engineering Statics and Dynamics by Shames cost me 65 Rupees or about 8 USD (exchange rate was 8 Rs per USD back in the 80s). My dad, a civil servant comparable to a sergeant in the US armed forces, had a take home pay of about 500 Rs then. Imported books, not reprinted as EEE, would easily run into 50 USD to 60 USD. It would have beeen one month pay for my dad.

Some student from Thailand imported the EEE books from Thailand, sold them on E-Bay and made 1.2 million dollars. He is claiming immunity under First Sale doctrine. The EEE contract with the Asian publishers prohibit them from selling it to the lucrative western markets. But once the book has been bought in those markets, can they be imported and sold in USA? The appellate court ruled it can't be brought in sold.

I am not a lawyer, but I expect the Supreme Court to rule more narrowly. "When a copyright/intellectual property right originating from USA, is licensed to foreigners under some restrictive license, the foreigners can not use first sale doctrine and third parties/subsidiaries to circumvent the license restrictions". That is the kind of ruling I expect. That is, not all foreign made objects would be exempted from first sale doctrine. Those items made abroad under restrictive licenses from ip-holders in USA alone would be exempted. But I am not sure they will rule this way. I am an engineer most comfortable calculating intersections between triangles and tetrahedrons. I find them very easy compared to US laws.

One interesting tit bit was that, when I came to USA as a student with F-1 Visa, I was scared by the EEE books I was bringing in. I used some 75% of my baggage allowance with books. I knew how serious copyright law was in USA. I knew my books are cheaper in India. I was worried the immigration officer would reject my visa and send me back! Seriously. I was worried about everything from the turmeric powder in my hand baggage to the loose staple on the sealed I-20 form issued by the university attached to my passport! Once inside the USA, I was just relieved. I never even thought for a moment to buy millions dollars worth of EEE books and selling them cheap in the USA. There have been hundreds of thousands of students from Asia who knew the price differentials. None of us thought of exploiting it by arbitrage, because we knew it was "wrong". This creep from Thailand did just that. If the courts do not rule narrowly and uphold first sale doctrine for these EEE books, the publishers will simply stop licensing EEE books under cheap terms. Millions of Asian students will be affected.

This is the wet dream of every maker (1, Insightful)

erroneus (253617) | about 2 years ago | (#41595349)

Oh goody! No more first sale doctrine! No more used games/CDs/cars/android-phones-tablets and on and on and on. You want a new one? Fine. Just don't think you can get away with selling your old one. Garage sales are the new black market.

I think NO OBJECT should be exempt from the first-sale doctrine. It's an object. A thing. The patents associated with the things were exhausted with the first sale. Nothing else was manufactured. I think they're out of their minds. But there would be enough big-money interest in the US wanting to see this happen so they can justify similar protection in the US to "fight back" in the most patriotic way imaginable.

The things I own, I don't own... I hoped I would die before that happened.

who cares (0)

Anonymous Coward | about 2 years ago | (#41595361)

No one is going to allow this garbage to happen anyway. We simply say, "I'll have to respectfully disagree, ya fuck" and do what we want anyway.

Fuck them. They can't legislate your freedoms away unless you allow them to. That is why we have the growing police state. The rulers know that they are going to stop over the line and have the 3rd American revolution on their hands.

Maybe that's why they have been promoting the term "home-grown terrorist" lately.

Re:who cares (2)

Lumpy (12016) | about 2 years ago | (#41595407)

"The rulers know that they are going to stop over the line and have the 3rd American revolution on their hands."

No they wont. The american sheep already accept and like it. Getting groped to get on an airplane is happily accepted by the majority of Americans. Having cops ready to tase you or even assult you for any reason is happily accepted by most americans.

As long as we have our cable TV and internet, we will be happy and complacent citizens...

Then why is it Taxed (0)

Anonymous Coward | about 2 years ago | (#41595423)

Oh wait. It is a fine.

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